70616 Australian Constitutional Law
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2025 is available in the Archives.
Credit points: 8 cp
Result type: Grade and marks
Requisite(s): 70211c Contracts OR 70102 Foundations of Law
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
This subject develops an understanding of the fundamentals of Australian constitutional law by examining the role and scope of the Commonwealth Constitution and the division of powers between the Commonwealth and the States under the system of responsible and representative government. Federalism and the fundamentals of State constitutional law are also addressed. Specific topics considered in this subject include: the philosophies and principles which shape Australian constitutional law; the content of the Commonwealth and State constitutions and theories used by the High Court when interpreting the Commonwealth Constitution; Commonwealth legislative powers. The role of international law in shaping Australian domestic law; the scope of executive, parliamentary and judicial powers and the relationship between these three arms of government; the rights and freedoms guaranteed by the Australian Constitution are also explored.
The Supreme Court of each State and Territory within Australia requires all law students to study State and Federal Constitutional Law: this is because constitutional law is the bedrock of the Australian legal systems and a range of legal disputes have the potential to develop into constitutional problems. Students therefore explore aspects of the Commonwealth Constitution and the Constitution of NSW, analyse their provisions and develop a deeper understanding of our system of government. They learn the language and skills of constitutional lawyers: how to research constitutional questions, how to solve constitutional problems and how to predict constitutional outcomes. To appreciate the role of constitutional law and its relevance to other areas of legal study and practice a 'road map' has been developed for students (available on Canvas).
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Explain the philosophies and principles that shape Australian Constitutional law, the content of the Commonwealth Constitution, the fundamentals of state constitutions and the role of the High Court in interpreting the Commonwealth Constitution. |
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| 2. | Locate, evaluate and organise information from recognised sources, using their research to generate a written legal argument that synthesises legal and contextual principles and issues, in order to critically evaluate and address Constitutional issues. |
| 3. | Prepare logical, succinct and persuasive responses to constitutional problems that are supported by relevant evidence and appropriate for a professional legal context. |
| 4. | Examine a set of facts, identify relevant Constitutional issues raised and consider Constitutional principles and cases, to determine the likely success of arguments for or against constitutionality. |
| 5. | Critically engage with the relationship between First Nations people, the Australian Constitution and legal institutions, including the Federal Parliament, High Court and Executive branch of Government. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Ethics and Professional Responsibility
A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including:
a. An understanding of approaches to ethical decision making and professional responsibility;
b. An ability to recognise, reflect upon and respond to ethical issues likely to arise in professional contexts in ways that evidence professional judgment, promote justice and serve the community; and
c. An ability to reflect on and engage constructively with diversity in practice. (LAW.2.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Indigenous Professional Capability
Bachelor of Law graduates will:
Apply knowledge and skills to develop professional capabilities to work effectively with and for Indigenous peoples and communities across the law profession. (LAW.7.1)
Teaching and learning strategies
Strategy 1: Preparation for lectures and tutorials
In order to prepare for the lectures students are expected to complete the required reading prior to the lecture (see the reading guide available on Canvas) and access the lecture slides (also available on Canvas) which have been prepared to assist students to structure their understanding of the lectures. They will assist you to follow the important concepts so make sure you print a copy of these slides and bring them to lectures, or have them open on your laptop, during the lecture. Make a note of the questions you would like addressed and ask these during the lecture.
In order to prepare for tutorials students are expected to read set materials and attempt reading log questions before every class (see Reading Guide on Canvas). The reading-log is designed to guide your understanding of the relevant topic. The reading-log exercise is designed to generate debate and discussion in tutorialsand students are encouraged to share and discuss their answers to reading-log questions in class.
You are expected to have a grasp of the basics of the topic so that face-to-face learning time can focus on verifying those understandings and developing more complex analyses.
Strategy 2: Lecture participation and review
Lectures provide students with the frameworks and guidance for understanding key principles and cases in selected areas of Constitutional Law and their analysis. Lectures will be delivered in person and recorded live. They will then be made available for students who are unable to attend at the scheduled time. Students seeking clarification of any material covered in the lectures may post questions on the designated forum under Discussions in Canvas. Alternatively, they can seek clarification from their tutor during the corresponding tutorial.
Strategy 3: Tutorial participation, discussion and analysis
Tutorial participation is compulsory and assessed. Students are expected to come to class ready to engage in a lively, informed and critical discussion of the Constitutional law topics set for that class. Discussion is guided by reading-log questions that students must review and answer before coming to class. Examples of questions include: How did 'Australia' come into being as a Federation?; What are the fundamentals of our system of constitutional law?; How are our rights and liberties protected by the Constitution?; and Why are the answers to these questions important to us as lawyers? Some class discussion will also be geared towards providing a critical foundation for the research essay.
There will be opportunities for students to receive feedback from their tutorial leader and peers as to their understanding of the material set for the tutorial.
Strategy 4: Collaborative Problem Solving
In the tutorials students will practise solving multi- issue constitutional law problems similar to those in the final exam with the aim of preparing students for the exam. All students will collaborate in problem solving exercises, often divided into groups to mirror the way in which such problems would be addressed in legal practice. Immediate feedback will provided responding to the appropriateness of students’ problem-solving strategies in the Constitutional law context.
Strategy 5: Online Learning
There will be an open discussion forum on Canvas in which students can continue class discussions, follow up on areas of interest, and to raise questions. Students can provide feedback to each other in this forum and the subject coordinator will moderate the forum to ensure that students have a correct understanding of the Constitutional topics under discussion. Non-assessable quizzes will be available on Canvas throughout session to provide students with an opportunity to test their understanding of the various topics. There are also extensive resources available for extended learning on Canvas including: Recorded lectures; reading guides; additional reading materials; seminar resources; and hot topics in the media about constitutional law.
Subject Delivery
The course will be taught with a combination of online and face-to-face components. Lectures will be delivered live and students are expected to attend the live lecture. It will be recorded and thus accessible for students who are unable to attend at the scheduled time however it may not be available until 24 hours after the live lecture. The majority of tutorial groups will be run on campus (face-to-face) throughout the session. One or two tutorial groups will be run entirely online for students who are unable to attend face-to-face classes. Online tutorials will be between 90 and 120 minutes. There will be no change to the 2-hour duration of the on campus tutorials.
Milestone Task
An aim of this subject is to help you develop academic and professional language and communication skills to succeed at university and in the workplace. During the course of this subject, you will complete a milestone assessment task that will, in addition to assessing your subject-specific learning objectives, assess your English language proficiency.
Content (topics)
- Fundamentals of Australian Constitutional Law
- Executive (including Nationhood)
- Legislative Powers
- s109 Inconsistency of Laws between the State and the Commonwealth
- Federalism and the State Constitutions, Commonwealth and State Relations and the Territories; Inter-Governmental Immunities; Commonwealth Laws limiting the States and State Laws limiting the Commonwealth
- Judicial Power of the Commonwealth and the Separation of Powers;
- Rights and Freedoms and Constitutional Guarantees – ss.116, 51(xxxi) and Other Rights and Freedoms
Assessment
Assessment task 1: Tutorial Participation
| Intent: | Students participation enables students to clarify and reinforce their understanding of the laws, principles and issues facing constitutional law and to develop skills in the presentation of legal arguments as would be required in practice. It also provides ongoing feedback for students from both staff and fellow students. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1 and LAW.3.1 |
| Weight: | 10% |
| Length: | Tutorial and lecture participation: 1000 words equivalent Total: 1000 words (nominal) |
| Criteria: | Tutorial Participation
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Assessment task 2: Research Essay
| Intent: | Development of a critical and analytical approach to the principles and theories behind the Constitution and the way in which power is divided amongst the various arms of government and across the Commonwealth and the States. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.2.1, LAW.5.1 and LAW.7.1 |
| Weight: | 40% |
| Length: | 2000 words (see Further Information). |
| Criteria: |
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Assessment task 3: Examination: Legal Problem-Solving
| Intent: | This task requires students to demonstrate an understanding of the subject content and to be able to apply that understanding to analyse a fact situation, identify the Constitutional issues in that fact situation and apply Constitutional principles and cases to determine the outcome as would be required in legal practice. |
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| Objective(s): | This task addresses the following subject learning objectives: 2 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.7.1 |
| Weight: | 50% |
| Length: | 2 hours duration; 2000 word limit |
| Criteria: |
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Required texts
The prescribed text in this subject is:
Melissa Castan & Sarah Joseph, Federal Constitutional Law: A Contemporary View (Lawbook, 5th ed, 2019).
*Note that you will also need to consult The Constitution (Commonwealth of Australia Constitution Act 1900 (Imp)) (a copy of which is provided in the Appendix of the textbook).
A comprehensive Reading Guide for each lecture and tutorial will be available on Canvas directing you to the appropriate pages in the text and any additional sources you need to review.
Recommended texts
Nicholas Aroney, Sarah Murray, et.al., Winterton's Australian Federal Constitutional Law (Lawbook Co, 5th ed, 2022).
George Williams, Sean Brennan, Andrew Lynch, Blackshield & Williams: Australian Constitutional Law & Theory, Commentary and Materials (The Federation Press, 7th ed, 2018).
Luke Beck, Australian Constitutional Law (Cambridge University Press, 2020).
Gabrielle Appleby, Alexander Reilly and Laura Grenfell, Australian Public Law (Oxford University Press, 3rd ed, 2018)
Dan Meagher, Amelia Simpson, James Stellios and Fiona Wheeler, Hanks' Australian Constitutional Law: Materials and Commentary (LexisNexis, 10th ed, 2016).
Other resources
Online resources
LexisNexis (esp Halsbury's Laws of Australia)
LawBook Online (esp Laws of Australia)
Other books, journals, articles and hyperlinks that will be relevant to this course will be posted on Canvas or details with be given in class or in your subject outline.
Other resources
The following journal indexes are useful in tracking down journal articles. Some of these emphasise Australian materials, others cover international materials with some references to Australian materials. Some of the indexes allow you access to the full text of journal articles. Go to the Databases catalog on the Library website where you will find the following:
- AGIS Plus Text via Informit allows you access to the local and overseas journals received by the Attorney-Generals Library, Canberra.
- Australian Public Affairs Full Text via Informit allows you access to both legal and non legal Australian journals.
- CaseBase via LexisNexisAu indexes many Australian and some overseas law journals. If the hypertext link works, you have access to the full text of many journal articles.
HeinOnline in particular The Law Journal Library contains the fulltext of over 500 journals. While the majority of these originate in the United States, many of the major university law reviews from Australia and other common law jurisdictions are also included.
Index to Legal Periodicals & Books is a US index focusing primarily on US materials plus other common law countries such as the UK, Canada, Australia, New Zealand etc.
Lexis contains a comprehensive range of United States primary and secondary legal materials and a range of international material from both common and civil law jurisdictions in fulltext. Includes the full text of many journals from various common law countries such as the US, the UK, Canada, Australia, New Zealand etc. This site does NOT provide access to fulltext newspaper services. Additional resources can be found in the Australian Constitutional Law Pathfinder
Useful Websites
Additional online resources will be posted on Canvas. Please check the External Links folder on Canvas regularly.